Citation Nr: 1224910
Decision Date: 07/18/12 Archive Date: 07/20/12
DOCKET NO. 10-44 660 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee
THE ISSUE
Entitlement to a total disability rating based on individual unemployability (TDIU).
REPRESENTATION
Appellant represented by: Tennessee Department of Veterans' Affairs
ATTORNEY FOR THE BOARD
Biswajit Chatterjee, Counsel
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INTRODUCTION
The Veteran served on active duty in the Army from January 1945 to June 1947, including service during World War II in the Asiatic-Pacific Theater.
This appeal to the Board of Veterans' Appeals (Board) is from a May 2009 and January 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which respectively, denied and continued to deny his claim for a TDIU.
The Veteran initially requested a Travel Board hearing, but subsequently withdrew this request in writing in January 2012, due to "health reasons." 38 C.F.R. § 20.704(e) (2011).
The issue of entitlement to service connection for acid reflux has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.
The Veteran has elected to participate in the Expedited Claims Adjudication (ECA) Initiative. See Expedited Claims Adjudication Initiative: Agreement and Waiver of Rights dated and executed January 2010. The ECA is a pilot program designed to expedite the processing of claims and appeals by obtaining claimants' waivers of certain statutory and regulatory response periods, and by utilizing the Board's statutory authority to pre-screen cases to determine the adequacy of the record for decisional purposes. The case has been processed under regulations governing the ECA. See 38 C.F.R. §§ 20.1500 - 20.1510 (2011).
Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002).
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.
REMAND
I. Social Security Administration (SSA) Records
A remand is necessary to obtain any outstanding SSA disability records.
In his original February 2009 TDIU claim (VA Form 21-8940), the Veteran indicated that he receives/expects to receive disability retirement benefits. He similarly noted that he had retired due to disability in a February 2009 Request for Employment Information (VA Form 21-4192). This raises the possibility of outstanding SSA disability records that may be pertinent to his claim on appeal. When, as here, VA is put on notice of the existence of potentially relevant SSA records, VA must try and obtain these records before deciding the appeal as part of the duty to assist. See 38 C.F.R. § 3.159(c)(2) and (3) (2011); see also Lind v. Principi, 3 Vet. App. 493, 494 (1992); Marciniak v. Brown, 10 Vet. App. 198, 204 (1997).
Accordingly, the case is REMANDED for the following action:
(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). Expedited handling is requested.)
1. Obtain any outstanding Social Security Administration disability records concerning this Veteran, including all medical records that formed the basis of any decision rendered by this other Federal agency. If these requested records do not exist or are unavailable, or the search for them otherwise yields negative results and further attempts to obtain these records would be futile, this must be documented in the claims file and the Veteran notified in accordance with 38 C.F.R. § 3.159(c)(2) and (e)(1).
2. Then readjudicate the claim in light of any additional evidence. If the claim is not granted to the Veteran's satisfaction, send him a Supplemental SOC (SSOC) and give him an opportunity to respond to it before returning the file to the Board for further appellate consideration of this claim.
The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).
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MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011).